DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TOWER RADIOLOGY CENTER,

Appellant,

v.

DIRECT GENERAL INSURANCE COMPANY,

Appellee.

No. 4D21-3119

[September 21, 2022]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Steven P. Deluca, Judge; L.T. Case No. CONO21-1163.

Chad A. Barr of Chad Barr Law, Altamonte Springs, for appellant.

William J. McFarlane, III and Michael K. Mittelmark of McFarlane Law, 

McFarlane Dolan & Prince, Coral Springs, for appellee.

PER CURIAM.

Tower Radiology Center (“Tower Radiology”) appeals a final order 

granting Direct General Insurance Company’s (“the Insurer”) motion to 

dismiss. Among other issues, Tower Radiology argues that, in evaluating 

the Insurer’s motion to dismiss, the trial court erred by going beyond the 

four corners of the statement of claim and considering a declaratory 

judgment to which Tower Radiology was not a party. We agree, and we 

reverse.

Jamar Reid was involved in a car accident and obtained treatment from 

Tower Radiology, to which he assigned his PIP benefits under an insurance 

contract. The Insurer denied benefits, and Tower Radiology sued for 

breach of contract in a statement of claim filed on January 15, 2021.

According to the statement of claim, the Insurer “issued a policy of 

insurance to insured, which insured patient Jamar Reid, or in the 

alternative Jamar Reid was the named insured on the policy, or in the 

alternative Jamar Reid was a dependent resident relative of the named 

insured, or in the alternative Jamar Reid was entitled to PIP benefits 

belonging to the motor vehicle involved in the accident . . . .” Tower 
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Radiology further alleged that the policy was “in full force and effect” at all 

material times. The insurance policy was not attached to the statement of 

claim and was not identified by policy number in the statement of claim.

A few months later, the Insurer filed an amended motion to dismiss the 

statement of claim. Therein, the Insurer asserted that, before the instant 

lawsuit’s filing, it had filed in another jurisdiction a declaratory judgment 

action against the named insured, Angela Carson, and since obtained from 

the county court in that case a consent final judgment declaring the 

subject insurance policy was void ab initio due to material 

misrepresentations which Carson had made in the policy application. The 

consent final judgment—to which Tower Radiology was not a named 

party—had further declared that the Insurer “has no duty to defend or 

indemnify any named or omnibus insured on the Insurance Contract for 

any claim(s) for benefits ....” The Insurer moved to dismiss Tower 

Radiology’s suit pursuant to the consent final judgment’s declaration that 

the subject policy was void ab initio. The Insurer attached a copy of the 

consent final judgment to the motion. The judgment was dated March 5, 

2021—nearly two months after Tower Radiology had filed its statement of 

claim. 

The trial court granted the Insurer’s motion. In its written order, the 

trial court took judicial notice of the declaratory action and consent final 

judgment, and stated that pursuant to applicable case law, “there is no 

duty owed and no valid contract exists, therefore, no cause of action 

exists.” The court’s order further found that Tower Radiology “does not 

have a cause of action to recover under the Insurance Policy because it 

has been previously deemed void ab initio.” Tower Radiology appeals from

this order. 

We review a determination on a motion to dismiss de novo. Visor v. 

Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000). “A motion to dismiss tests 

the legal sufficiency of the complaint.” Ramos v. Mast, 789 So. 2d 1226, 

1227 (Fla. 4th DCA 2001). “In assessing the adequacy of the pleading of 

a claim, the court must accept the facts alleged therein as true and all 

inferences that reasonably can be drawn from those facts must be drawn 

in favor of the pleader.” Schneiderman v. Baer, 334 So. 3d 326, 330 (Fla. 

4th DCA 2022) (quoting MEBA Med. & Benefits Plan v. Lago, 867 So. 2d 

1184, 1186 (Fla. 4th DCA 2004)).

“When ruling on a motion to dismiss, ‘[a] court may not go beyond the 

four corners of the complaint and exhibits attached thereto.’” Id. (quoting 

Kohl v. Blue Cross & Blue Shield of Fla., Inc., 988 So. 2d 654, 658 (Fla. 4th 
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DCA 2008)). “Unless the parties have stipulated to judicial notice, a court 

cannot rely on judicial notice to sidestep the four corners rule.” Id.

However, “where the terms of a legal document are impliedly 

incorporated by reference into the complaint, the trial court may consider 

the contents of the document in ruling on a motion to dismiss.” One Call 

Prop. Servs. Inc. v. Sec. First Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 

2015). Likewise, while affirmative defenses such as collateral estoppel and 

res judicata may not generally be raised by a motion to dismiss, “an 

exception is made when the face of the complaint is sufficient to 

demonstrate the existence of the defense.” Ramos, 789 So. 2d at 1227.

In the instant case, the trial court erred by considering the consent final 

judgment. The consent final judgment was not attached to, referenced in, 

or even alluded to in the statement of claim, nor did Tower Radiology 

stipulate that the trial court could take judicial notice of the consent final 

judgment. Nor was the policy number or named insured Angela Carson 

included in the statement of claim, so as to demonstrate the policy 

referenced in the statement of claim was the same policy that was the 

subject of the consent final judgment. The Insurer’s defense that the 

underlying policy was void ab initio simply could not be determined as a 

matter of law from the four corners of the statement of claim. 

Moreover, we agree with Tower Radiology’s argument that, because it 

was a non-party to the declaratory judgment action, the trial court violated 

section 86.091, Florida Statutes (2021), when it relied on the final consent 

judgment to dismiss the instant case. See § 86.091, Fla Stat. (2021)

(“When declaratory relief is sought, all persons may be made parties who 

have or claim any interest which would be affected by the declaration. No 

declaration shall prejudice the rights of persons not parties to the 

proceedings. . . .” (emphasis added)); see also Indep. Fire Ins. Co. v. 

Paulekas, 633 So. 2d 1111, 1113 (Fla. 3d DCA 1994) (“A declaratory action 

obtained by an insurer against its insured is not binding on a third-party 

claimant who was not a party to the declaratory judgment action.”); Helt 

v. Liberty Ins. Corp., 153 F. Supp. 3d 1388, 1389 (M.D. Fla. 2015) (state 

court judgment that policy was void ab initio “is not binding upon a third 

party who acquired rights under the policy prior to the declaratory 

judgment action but was not joined as a party to that action”). 

In light of the limited allegations of the statement of claim and Tower 

Radiology’s status as a non-party to the declaratory judgment action, the 

consent final judgment should not have been enforced against Tower 

Radiology as a matter of res judicata to grant the Insurer’s motion to 

dismiss. 
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Accordingly, we reverse and remand for further proceedings.

 

Reversed and remanded.

GROSS, CIKLIN and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.